Does Candor Require Secrecy? A Critical Review

When the Supreme Court ordered the Nixon White House to comply with a subpoena for the Watergate tapes in the 1974 case of United States v. Nixon, it also endorsed the general proposition that secrecy is essential to presidential deliberations since it permits greater candor and therefore promotes a superior policy outcome.  “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately,” the Court said.

The premise that candor is incompatible with disclosure has become a cornerstone of the edifice of government secrecy, and an axiom of freedom of information policy, which provides an exemption for deliberative records.  Yet it is mistaken, according to an iconoclastic new law review paper (pdf), and should be corrected.

It seems intuitively obvious that private discussions lend themselves to greater candor than do public ones.  In private, anyone might be more willing to reveal ignorance or uncertainty, to express personal emotion, or to consider risky or improbable alternatives.

But this is “a highly contestable view of human nature,” write Eric Lane, Frederick A.O. Schwarz, Jr., and Emily Berman, and it has little empirical basis.  What’s worse, they say, is that the equation of candor and confidentiality fails to take into account the corrosive effects of secrecy.

In practice, according to the authors, secrecy may actually discourage candor.  “When policy deliberations are deemed likely to remain secret, dissenters from the majority view might be more reluctant to give voice to their concerns…. And decision makers themselves might feel freer to silence dissenters when they do not expect their decision-making processes to be subject to scrutiny.”  This was often reportedly the case during the George W. Bush Administration when, according to multiple accounts cited in the paper, presidential advisors declined to question or to challenge confidential policy judgments.

Furthermore, secrecy is not necessary for candor.  Congress rarely invokes secrecy in its deliberations, though it is constitutionally authorized to do so.  As is demonstrated in many political contexts, it is perfectly possible for policy discussions to be both open and candid, with no detrimental effect.  (Under San Francisco’s unusually bold 1999 Sunshine Ordinance, observed Joseph Lorenzo Hall of UC Berkeley, deliberative material is entirely subject to disclosure.)

Finally, the authors write, candor itself does not necessarily promote good decision making.  “While candor may have allowed the president to explore the possibility of engaging the CIA to interfere with an FBI investigation, surely such candor should not be encouraged by the promise of secrecy…. In many of the contexts in which candor is used as a justification for secrecy, the candor that is being shielded is candor that disserves the public interest.”

The authors emphasize that they do not categorically oppose confidential deliberations nor do they advocate that every official meeting be broadcast on live television.  Rather, they argue that the presumption of deliberative secrecy adopted by the Nixon Court is unjustified by principle or practice, and that it should be replaced by a general presumption of openness, especially with respect to congressional requests for access to executive branch records.

“The presumption established by the Nixon Court endorsed and furthered a particular perception of the nature of government decision making — that it is a process whose details should remain hidden behind a veil of secrecy…. It gives presidents and their advisors reason to believe that secrecy is standard operating procedure.”

“Dismantling the Nixon canon — as this Article advocates — would instead foster a culture where the expectations were reversed, where ideas about what is appropriate for public discussion are expanded, and where secrecy must be justified by a risk of significant harm — not harm to the political prospects of the incumbent officials, but to the interests of the nation as a whole.”

See “Too Big a Canon in the President’s Arsenal: Another Look at United States v. Nixon by Eric Lane, Frederick A.O. Schwarz, Jr., and Emily Berman, George Mason Law Review, volume 17, no. 3, Spring 2010.

0 thoughts on “Does Candor Require Secrecy? A Critical Review

  1. As an historian and former National Archives’ Nixon tapes archivist, I have to say I was not very impressed with the article. The authors should have distinguished at the outset the distinction between candid deliberations that are written down or otherwise recorded and ones that occur orally only, with no record. It is entirely possible to receive a briefing paper and to discuss pros and cons of options available in a meeting or on the telephone and to have a level of candor which is untouched by the concept of privilege. Or to say at the outset, “don’t put it in writing, just come and talk to me, give me an oral briefing.” No records, no privilege.

    Since the passage of open records laws, historians and lawyers and archivists have debated the potential of a so-called chilling effect on the White House and executive departments and agencies. If it exists, it can lead people to take their most candid deliberations “off line.” That doesn’t mean debate does not occur, it means no paper trail exists. Or if there is a paper trail, some of it may be written in “discoverable language,” as some observers have noted. Historian Michael Beschloss wrote in Presidential Studies Quarterly (December 2002) that in his view, “People in Washington are more public relations savvy than in earlier times and, thus, more adept at drafting memos and other records that conceal their motives and can fool the historian.”

    Moreover, in archival terms, the significant determinations lay in Nixon v. Administrator of General Services, not in U.S. v. Nixon. In Adminstrator, the court articulated the principle of erosion of privilege. As Scott L. Nelson of Public Citizen noted in arguing issues related to E.O. 13233, “the Supreme Court has also emphasized that executive privilege is subject to ‘erosion over time’ after a president leaves office. See Nixon v. Administrator of General Services, 433 U.S. 425 (1977). The congressional judgment underlying the PRA is that that erosion would be such that, after the passage of 12 years, there would be little (if anything) in the president’s communications with his advisers that should legitimately remain secret.” That being the case, those portions of the George Mason Law Review article that appear to argue from a premise of permanent secrecy should be re-examined.

    Moreover, the authors overlook factors that affect candor in real life. One is the impact of being an at-will employee, who can be fired by the President at a moment’s notice. People with civil service protection who annoy supervisors may be shunted aside and given poor assignments or otherwise made miserable on the job, but they cannot be fired outright simply for saying, “we can’t do that.” White House advisors don’t have civil service protection. Nixon’s grumbling on a once-secret but now released portion of the White House tapes about lawyers who kept telling him he couldn’t do things and his desire to turn to other lawyers is a classic case of how an executive might view his ability to change advisors at will. Nixon’s chief of staff, H. R. Haldeman, learned which directives he should drag his feet on, until Nixon thought better of them as he cooled down. Sometimes the President ended up saying, “just as well” as Haldeman said he hadn’t yet acted on some such directives and let them go. Haldeman could not in all such instances say at the outset, “boss, that might not be such a good idea.” He had to resort to passive resistance at times, letting Nixon nag him about why he hadn’t acted until he changed his mind and withdrew the request.

    Finally, the authors of the Mason law review article overlook the concept of a safe haven. It is the knowledge that your words will not be cherry picked and used against you unfairly that most affects how candid people are. Look at how we deal with the people we choose as friends, whom we date and reject or build relationships with, marry or with whom we otherwise build long term relationships. With some people around us, we wear masks. We establish a shallow, superficial relationship with them and save our “real selves” for those we actually trust. With the latter, we can be ourselves. We can reveal concerns and self doubt and look at issues honestly. It is the knowledge that the person with whom we share confidences will treat them honorably and with integrity, rather than politically or vindictively, that guarantees maximum candor. So too with executive branch officials.

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